This was an appeal and counter-appeal in cassation against the decision of the Court of Appeal of Aix-en-Provence on 23 June 2022 (CMI2078). Atuneros Congeladores y Transportes Frigorificos (Atunsa), the shipper, entrusted CMA-CGM with the transport of 19 containers of frozen tuna in bulk from Senegal to Mauritius. According to the bill of lading, the goods had to be transported at a constant temperature of -20° C. The goods were found to be damaged, and the consignee, Princes Tunia (Mauritius) Ltd, refused to take delivery. The Court of Appeal held that the original Hague Rules applied, and CMA-CGM was ordered to pay Atunsa's insurer, Generali Seguros (GS), 1,647.92 SDRs/the EUR equivalent.

GS complained that art 4.5 of the Hague Rules provided:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

GS argued that the Court of Appeal had violated this provision by limiting the liability of the maritime carrier to 1,647.92 SDRs, after holding that the unamended Hague Rules were applicable due to the effect of the paramount clause in the bills of lading. However, in addition to mentioning the containers, the bill of lading referred to the weight of the packed goods expressed in kg. The Court of Appeal failed to check whether the parties to the transport contract had referred to this measure, and had chosen it as the applicable freight unit.

CMA-CGM argued that GS's plea was inadmissible, as GS had not argued on appeal that it would be appropriate, in the case of bulk goods, to refer to the bill of lading to determine the freight unit chosen by the parties.

Held: Partial cassation. CMA-CGM's cross-appeal is dismissed. The Court of Appeal's judgment is struck down and annulled, but only in so far as it requires CMA-CGM to pay GS 1,647.92 SDR/its EUR equivalent. On this issue, the case and the parties are returned to the state in which they were before this judgment, and the case is remitted back to the Aix-en-Provence Court of Appeal differently constituted.

GS's plea does not rely on any fact which was not submitted to the deliberation of the Judges on the merits and established by the contested decision. It is purely legal and, as such, admissible.

Having regard to article 4.5 of the Hague Rules, the Court of Appeal did not provide a legal basis for its decision, as it did not investigate, as it was required to do, whether the parties to the transport contract had referred to a freight unit and, if so, which one had been chosen, in the bills of lading which mentioned the transport of tuna in bulk (of which 52,540 kg had allegedly been damaged).